Question: We used a babysitter locator website to find someone to care for our son this summer. After selecting a babysitter, however, we kept having difficulty scheduling her for the hours that we needed. After several cancellations, we became concerned about whether she was trustworthy enough to care for our son. We decided to cancel our arrangement with her and enroll him in a daycare program. Now she is threatening to sue us. Can I be sued for canceling our arrangement with her, despite the fact that she never cared for our son a single time?

Answer: Can you be sued? Yes. You can always be sued. The real question is, how likely are you to lose? And if you’re not likely to lose, how quickly and cheaply can you get it resolved?

Your question assumes that you formed a contract with this babysitter. There are several steps that have to have occurred in order for a contract to have been formed. A vague understanding that you would call this woman when you needed her probably wouldn’t be enough to do it. There needs to have been a relatively specific agreement, acknowledged by both of you, about what she was going to do for you and how much you were going to pay her for her services. I can’t tell from your question whether your agreement meets that threshold, but for purposes of this answer, I’ll assume, as you have, that it does.

With that assumption in place, my first question, if I were representing you, would be whether she breached the contract by failing to show up for the hours that you needed her. It’s possible that if anyone has a legal claim to assert here, it’s you.

Before you get too excited about that possibility, however, the thing to understand about breach of contract claims is that, in order to prevail on one, you have to prove that you were damaged by the other party’s failure to abide by the contract’s terms. Even if the other party blatantly failed to do what they contracted to do, you can only sue if their failure to perform cost you money.

Moreover, parties to a contract have a duty to mitigate their damages when a breach has occurred. So let’s go one assumption further and presume that you had an enforceable contract in place and that your babysitter was ready, willing, and able to perform as she had promised, but that you impermissibly canceled your arrangement. She can’t just sit on her hands and sue you for everything that you had promised to pay her. She has to make a reasonable effort to go out and find another job. If she is able to find one, she doesn’t have any damages to sue you for.

If she really can’t find a job that pays her as much as you were going to pay her, she can sue you for the difference between what she ends up making and what you had promised to pay her. But that’s likely to be less, maybe much less, than the full amount that you were planning to pay her. And given that you have found other arrangements for your son’s care, you have mitigated your damages and don’t have anything to sue her for (unless the care you have arranged costs much more than you were planning to pay her, and you didn’t have any cheaper options).

Hopefully, your erstwhile babysitter will conclude that whatever she lost out on here is not enough to justify litigation. If you are sued, however, and the amount at issue is large enough to warrant putting up a vigorous defense, a good lawyer could probably throw a lot of sand in the gears of any claim brought against you.

Good luck with this.